EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

TITLE VII: Disparate Impact, Handwriting Analysis

February 28, 2001

Dear :

This is in response to your letter received by the U.S. Equal Employment Opportunity Commission (EEOC) on January 29, 2001. You ask whether it is legal to use an analysis of an applicant's handwriting as an employment screening tool. You also ask whether it is legal to ask the applicant's age and use of medications to allow for variants in his/her handwriting. We will provide you with general guidance on the legality of considering handwriting analysis in employment decisions and the
pre-employment inquiries concerning the applicant's age and use of medication.

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII); (1) the Age Discrimination in Employment Act of 1967 (ADEA); (2) and the Americans with Disabilities Act of 1990 (ADA); (3) which prohibit employment discrimination on the bases of race, sex, color, national origin, religion, age, and disability. These laws prohibit intentional discrimination against a protected group. They
also bar the use of a facially neutral policy that has the effect of excluding protected group members from employment opportunities, if the policy is not job-related and consistent with business necessity. We are aware of no cases that address whether a policy of excluding applicants based upon their handwriting has an adverse impact on a protected group. (4) If, based on national statistics or the statistics in your client's applicant pool, this policy has no
adverse impact on a protected group, it will not be subject to challenge under these laws. If the policy does have an adverse impact, your client will be required to justify it as job-related and consistent with business necessity.

The analyst also asks the applicant's age allegedly to allow for variants in analyzing his/her handwriting. Generally, making pre-employment inquiries which directly or indirectly disclose the applicant's age is not a per se violation of the ADEA. However, unless justified, such inquiries may be important evidence of discriminatory selection, since it is reasonable to assume that all pre-employment questions are asked for some purpose and that hiring decisions are made on the
basis of the answers given. See Gregory v. Litton Systems, 316 F. Supp. 401, 403 (C.D. Cal. 1970) (pre-employment information which is obtained is likely to be used), modified on other grounds, 472 F.2d 631 (9th Cir. 1972). Therefore, such inquiries will be closely scrutinized. If an employment decision is challenged, the inquiry must generally be justified by showing that the information was not used for selection purposes or that the inquiry concerned a valid criterion for
employment.

The analyst also asks whether the applicant is on any medications to allegedly allow for any variants in his/her handwriting. This question is illegal under the ADA. At the pre-offer stage, an employer may not ask a question that is likely to elicit information about a disability. Questions concerning current or prior lawful drug use are likely to elicit information about a disability. For example, questions like, "What prescription medications are you currently taking?" or "Have you ever
taken AZT?" certainly elicit information about whether an applicant has a disability. (5)

Of course, we can address the legality of a specific policy only after a charge has been filed. For additional information, please visit our website at www.eeoc.gov. We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-12(b).

4. We have attached a law review article that you may find helpful. Julie A. Spoh, The Legal Implications of Graphology, 75 Washington University Law Quarterly 1307 (1997) (analyzing the rise in the use of graphology by employers in employment decisions). Note, however, that the Commission does not endorse nor support any of the views taken in this article.

5. See EEOC Enforcement Guidance, "Preemployment Disability-Related Questions and Medical Examinations," October 1995, which is available on our website.